EDITION 10
WeeklySEpTEmbEr 28, 2012
Robert Hibbert on Food Labeling Lawsuits
GMOs & Junk Science: Apocalypse Soon If Not Now
Michael Lichtenstein on Bankruptcy
How tHe NFL was Forced iNto FourtH & LoNg
Jason maloni Originally Published on Levick Daily
How tHe
NFL was Forced iNto FourtH & LoNg
• ActionSportSphotogrAphy/ShutterStock.com
Weekly
As of this writing, ESPN’s Chris Mortensen
and John Clayton are reporting that the
NFL’s regular referees have ended their
lockout and will return to work tonight for
the Thursday night matchup between the
Cleveland Browns and Baltimore Ravens.
While Monday Night Football’s controver-
sial outcome was certainly a catalyst in
getting a deal done, there were a number
of other factors that robbed the league and
owners of significant leverage and forced
them into a compromised position at the
negotiating table.
With the regular refs making their much-an-
ticipated return to work (with a few new perks
in hand to boot), there’s no better time to play
Thursday morning quarterback and examine
some of the communications missteps that
allowed public opinion to so one-sidedly turn
against the league. Even with a number of
compelling talking points on its side, the NFL
was forced into fourth and long. Here’s how it
all went down:
1. tHe NFL Never assumed coNtroL oF tHe Narrative.
From the outset (preferably weeks before the
season started), the NFL needed to aggres-
sively educate fans, players, coaches, and the
media as to the key sticking points that forced
it to lock out the regular referees—nearly all
of which provided ample justification for the
league’s decision. Simply put, the NFL wanted
a slate of full-time referees who could devote
their professional lives to ensuring the highest-
quality officiating. The referees wanted to
keep their day jobs—and maintain retirement
benefits that simply don’t exist for part-time
employees in just about any other industry.
In the end, the NFL didn’t work hard enough
to communicate this point, which could have
painted the regular referees as the ones hold-
ing the game hostage for perks that fall outside
acceptable norms. As ironic as it may sound,
the league had a chance, early on, to make the
lockout about player safety rather than money.
Better trained and younger referees would
make for a safer NFL. Instead, the league
and owners were silent and they ceded the
safety message.
2. tHe League’s siLeNce was perceived as arrogaNce.
With its stance fully articulated and its view
of the heroes and villains established, the NFL
could have then prepared fans, players, and
coaches for the fact that games simply weren’t
going to run as smoothly with replacement
referees at the helm. Had the league taken this
seemingly counterintuitive step, it would have
been seen as prescient and in-touch when eas-
ily-anticipated issues related to player safety
and “the integrity of the game” did arise. In-
stead, the league was reticent to address the is-
sue and stubbornly insisted that the game and
its players would not suffer. It even praised
the replacements after a lackluster Week One
performance. This had the opposite effect
of making the NFL seem out-of-touch with
on-filed reality and reinforced an already-
dominant perception that the league believed
fans would keep coming back, no matter how
diluted its product and brand might become.
Ultimately, the NFL’s and silence and refusal
to recognize the issue was perceived as arro-
gance whispered—and that rubbed stakehold-
ers the wrong way.
3. sociaL media seNtimeNt overwHeLmed tHe NFL.
In the wake of Monday night’s debacle, the
Twitter-sphere erupted with criticism from
fans, players, and commentators who dubbed
the controversial call “The Inaccurate Recep-
tion,” a “Fail Mary,” and “Conduct Detrimen-
tal to the League.” All the while, the league’s
stance remained virtually absent from the
conversation. Without prior conditioning of its
marketplace with the steps outlined in points
one and two, there was simply no way for
the NFL to keep up with, or at least manage,
a social media deluge that affixed the blame
Weekly
squarely on the league’s shoulders. There was
no time to rally supportive and influential
third-parties and no chance to reverse an over-
whelmingly negative tide of sentiment. In the
age of social media, proactive and preventative
communications are the only way to ensure
a story doesn’t spin beyond an organization’s
control when trouble arises. The NFL didn’t do
the legwork up front. As such, it was caught-
flat footed at the moment of truth.
4. wHere were tHe owNers’ moderate, trusted voices?
Throughout the entire dispute, the league’s
key spokespeople were incendiary and con-
troversial figures such as Commissioner Roger
Godell and Dallas Cowboys owner Jerry Jones.
Where were the more widely-respected,
moderate voices of the Mara and Rooney
families? Where were the statements of soli-
darity among all 32 NFL owners? With all the
controversy that has dogged the NFL in recent
years, the messengers were as important as the
message in this latest public relations ordeal.
The faces of the NFL’s argument lacked the
credibility needed to sway public opinion. Ulti-
mately, the NFL paid a price for that decision.
5. tHe reguLar reFs Never Feared LosiNg tHeir jobs.
In many labor disputes, it is important that
management articulate that it won’t allow
labor to hold the organization over a barrel
forever—and referee lockout was no different.
Not once did the NFL articulate an acceptable
contingency plan in the event that a settle-
ment could not be reached and not once did it
communicate that a “Ronald-Reagan-air-traffic-
controllers” option was on the table. In the
end, that allowed the regular referees to simply
sit tight and watch as officiating mistake after
officiating mistake reached critical mass and
forced the NFL to meet at least some their most
important demands.
Some may think that the NFL lost its leverage
when the call heard round the world was made
on Monday night. The reality is that its position
was weakened long before the replacements
ever took the field. Because the NFL didn’t
communicate as aggressively as it could have, it
was fourth in long before it ever got the ball.
Jason Maloni is a Senior vice President at Levick and chair
of the firm’s Litigation Practice. He is also a contributing
author to Levick Daily.
“ Some may think that the NFL lost its leverage when the call heard round the world was made on Monday night. The reality is that its position was weakened long before the replacements ever took the field.”
L
Today on LEVICK Daily, we continue our examination of recent lawsuits filed against the food and
beverage industry with Robert Hibbert, a Partner in the Washington D.C. office of Morgan, Lewis &
Bockius. Aggressive consumer advocacy in the area of food labeling dictates a need for companies
to factor new levels of scrutiny into their marketing decisions, monitor precedent-setting decisions
in the cases that have already been filed, and perhaps even establish industry-wide guidelines that
buttress their compliance messaging.
robert HibbertoN Food LabeLiNg Lawsuits
richard S. Levick, Esq.Originally Published on Forbes.com
apocaLypse sooN iF Not Now
gmos & juNk scieNce:
Weekly
As the experts scrutinized the new study, they
found quite a bit to question. For example,
rats that ate more of the genetically modified
corn actually did not get as sick as those who
ate less of it. The researchers also chose rats
that have a tendency to develop tumors if their
diets are not controlled. They provided graphic
pictures of the afflicted rats which, as one
UK researcher noted, encourage the dubious
impression that such symptoms never occur in
control groups. Finally, there were only 20 rats
in the control group, too small a sample for
meaningful comparison.
One exasperated medical statistician pointed
out that the study included 18 exposed groups
compared to only two control groups. “The
potential for cherry-picking the nice positive
results here from a sea of boring null ones is
immense,” he blogged. NPR joined the skeptics:
“No one has found new toxic substances in
these crops. And the giant feeding experiment
that’s been going on for the past fifteen years
—hundreds of millions of Americans consum-
ing GMO ingredients—hasn’t produced evi-
dence of harm, either.”
Despite its methodological deficiencies and the
many critiques from diverse sources, the study
is already having impact. There are calls in
France and Austria for further investigation.
Stateside, the research is fueling California’s
Yes on Proposition 37 initiative to label
In some ways it’s remarkable that Rachel
Carson is still controversial, as we’ve been
reminded by this month’s 50th anniversary
of the publication of Silent Spring. A hero-
ine to many in the 1960s, including Presi-
dent John Kennedy, Carson is credited with
igniting, or at least profoundly influencing,
what we now think of as the modern envi-
ronmental movement.
Yet the book’s attack on DDT and other pesti-
cides still inspires vigorous counter-assault,
especially the compelling claim that the sub-
sequent ban led to deadly malaria epidemics
in Africa. Like many environmental crusaders
today, Carson was also accused of using what
we now call “junk science” to advance her
personal agenda.
A half-decade later, we now confront some
activists whose agendas seem all too clearly in-
terested; whose research studies should prove
an embarrassment to responsible environmen-
talists. If anything, the anniversary of Silent
Spring ought to occasion even closer scrutiny
of such “science” if only to better preserve the
legacy of what its author and those like her
did accomplish for the greater good. As some-
one who spent a career in the environmental
movement, I know that sound science only
serves the cause in the long run.
Such scrutiny is all the more exigent because,
if our latter-day guerilla environmentalists
achieve their goal on one particularly critical
front, the result will be well-nigh apocalyp-
tic. It would devastate the very environment
they’re forsworn to safeguard.
I refer to the wave of attacks on genetically
modified organisms (GMOs) and genetically
modified foods, and the crusade to halt the
production of disease-resistant crops essential
to support human life in the coming decades.
Consider that the world’s population could
double by 2050, according to the United Na-
tions Population Fund. Under present circum-
stances, that will create an untenable burden
on food production absent wider application of
GMO technology.
One recent assault on GMOs that has captured
international attention typifies the fight we’ve
got on our hands. This study, published on
September 19, purportedly shows that rats
who were fed genetically modified maize
sprayed with a weed-killer, or who drank wa-
ter with specific levels of that weed-killer, were
much likelier to develop tumors that block or-
gan function, and to die earlier than rodents in
a control group. (Both the corn and the weed-
killer are produced by Monsanto, perennially
at the epicenter of the ongoing
GM controversy.)
The study came as quite a surprise to
scientists. Reputable regulatory and health
agencies in the U.S. and EU that have looked
closely at GMOs found them safe, as have the
National Academy of Sciences and the British
Royal Academy.
Weekly
genetically modified food. Meanwhile, the re-
searchers themselves are playing fast and loose
with the media, or trying to.
Traditionally, scientific journals offer advance
notice to reporters so they can call indepen-
dent experts and review previous studies.
The authors of this study took a very different
approach. Yes, they sent out the findings early,
but only to reporters willing to sign confidenti-
ality agreements that precluded neutral expert
opinion until after the research was published.
(The reporters who agreed to this arrangement
fortunately re-filed their stories after the em-
bargo ended, adding in the expert commentary
for balance.) This blatant over-reaching by the
authors compromised the integrity of their
work as surely as any methodological oversight
or prevarication.
Bruce Chassy, professor emeritus of food sci-
ence at the University of Illinois, calls it “a
well-planned and cleverly orchestrated media
event…The purpose was not to produce new
scientific information but rather was to nega-
tively influence public opinion of GM crops.
“This makes a mockery of science,” adds Chassy.
Another current environmental study, also
from France, discloses the same disturbing
pattern in which a tendentious report wreaks
havoc on manufacturers (and farmers) even
though its scientific integrity is being effec-
tively questioned. This controversy is addition-
ally resonant on the 50th anniversary of Silent
Spring as the study targets pesticides; specifi-
cally, the neonicotinoid insecticides that
can allegedly cause wholesale honeybee
colony collapses.
Here too, the research flaws were powerfully
exposed. It now appears that the calculations,
based on erroneously low birth rates, do not
reflect the rate at which honeybee colonies
withstand the loss of individual members.
“When we repeated the previous calculation
with a realistic birth rate, the risk of colony col-
lapse under pesticide exposure disappeared,”
said Dr. James Cresswell of the University of
Exeter, who called for “sound evidence…so
governments can put together a proper plan
to protect [colonies] from any dangers that the
chemicals pose.”
That’s what the voice of reason sounds like
unencumbered by an agenda or premature
conclusions as to the actual impact of the insec-
ticides. Unfortunately, governments are rather
more inclined to be premature in their reac-
tions if sufficiently motivated. France, for one,
has already banned a neonicotinoid as if the
research published in April was unassailable.
When governments and public opinion turn
on potentially discredited research, producers
need to be commensurately more aggressive.
They need to switch the narrative altogether to
show that safe GM crops are an environmental
survival tool; that, conversely, junk science is
an environmental hazard.
From a communications standpoint, it’s an
ideal moment to make that case.
After all, we are still living though a historic
drought that has had a painfully obvious
impact on agriculture. Next year promises to
be worse as El Niño conditions are forecast
to develop in the Pacific Ocean, heating water
surfaces to such an extent that observers pre-
dict record-breaking temperatures in 2013.
A beleaguered public may well listen more
closely now than in the past to what GM food
producers have to say.
In this dialogue, it should be acknowledged
that simply adopting “better growing tech-
niques and soil maintenance” is useful but
hardly enough compared to the productive im-
pact of herbicides and the no-till farming they
enable – which, in turn, reduces erosion and,
because soil runoff is the single greatest pol-
lutant of our streams and waterways, likewise
acts as an effective anti-pollutant.
Here, perhaps, is the greatest irony in any
Silent Spring commemoration. The agricul-
tural industry that Carson and her followers
targeted as Enemy Number One is now one of
the most important and effective protectors of
our environment.
Richard S. Levick, esq., President and ceO of Levick,
represents countries and companies in the highest-stakes
global communications matters—from the Wall Street
crisis and the Gulf oil spill to Guantanamo Bay and the
catholic church.
L
“ ...we are still living though a historic drought that has had a painfully obvious impact on agriculture. Next year promises to be worse as el Niño conditions are forecast to develop in the Pacific Ocean, heating water surfaces to such an extent that observers predict record-breaking temperatures in 2013.
Weekly
tHe urgeNcyoF Now.
Michael Lichtenstein discusses reorganization and liquidation for businesses big and small,
referencing Penn Camera and American Airlines.
crisis
LitigatioNFiNaNciaL commuNicatioNs
corporate & reputatioNpubLic aFFairs
sigN up today
micHaeL LicHteNsteiNoN baNkruptcy